What Are Impeachable Offenses?

Harvard University Press, 199 pp., $7.95 (paper) (to be published on October 2)

1.

As more and more evidence of collusion between Donald Trump’s presidential campaign and Russia has come to light, the analogy to Watergate has grown ever stronger. In both cases, a burglary of the Democratic National Committee, undertaken to influence the outcome of an election, ignited a burgeoning scandal. Trump’s firing of FBI Director James Comey and warnings to Special Prosecutor Robert Mueller conjure President Nixon’s Saturday Night Massacre. Trump echoes Nixon in raging against leaks and decrying the investigation of his office as a “witch hunt.” There was brief excitement about Trump’s suggestion that he too might have a presidential taping system (though this seems to have been only a bluff).

Donald Trump; drawing by John Springs

Our lexicon for political scandal derives largely from Watergate, so it is almost impossible to discuss executive branch misdeeds without referring to it. Phrases like “It’s not the crime, it’s the cover-up” and “What did the President know and when did he know it?” are embedded in our national consciousness. We all know where the Watergate comparison leads, of course: to constitutional crisis and impeachment, the fate Nixon evaded only by his resignation. It is comforting to Trump’s opponents to think of this outcome as inevitable, but of course it is not. Whether or not it is “worse than Watergate,” the Trump-Russia scandal differs from it in ways that bear directly on how impeachment might serve as a remedy today.

Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood. There are no judicial opinions that create precedents for how and when to proceed with it. Past cases are subject to competing and often contradictory interpretations. Some might even be tempted to argue that because impeachment is ultimately political, it cannot be considered in legal terms at all.

That extreme view cannot be right. Impeachment must be a legal procedure because it derives from specific constitutional directives. The impeachment clauses of the Constitution are subject to interpretation, like all language, legal or otherwise, but they function as law. Members of Congress have a sworn legal duty to apply the Constitution correctly—including when they are considering impeachment. Calling for the impeachment of Supreme Court Justice William O. Douglas in 1970, then Congressman Gerald Ford asserted that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” That statement ought to be taken as a description of political reality, not a prescription that Congress may choose to treat any conduct as impeachable.

The legal limits of the impeachment power are subject to debate.1 Yet it is clear both historically and logically that impeachment was designed to deal with abuses committed while in office, not prior crimes. Any wrongdoing of Trump’s before he assumed the presidency must be considered separately from offenses he may have committed in office. The former, however serious it might be, is not a basis for impeachment; and the president is presumptively protected from prosecution by presidential immunity until he leaves the White House.2

Between this before-and-after division lies an unexplored gray area: Can a president be impeached for attempting to steal an election while he was not yet in office? On the one hand, actions taken by a candidate are not technically an abuse of an office that he does not yet hold. On the other hand, crimes committed in pursuit of the presidency could count as “high” in the sense that they are connected to the presidency even if they are not committed in office.

The decision would lie with Congress, which could simply reject the distinction. The problem did not arise in Nixon’s case, because his dirty tricks (including the Watergate break-in) took place while he was in office, running for a second term. It is probably safest to assume that if Trump colluded with Russia during the 2016 election, that would not qualify as a high crime or misdemeanor. Nevertheless, he would be impeachable for any official acts during his presidency resulting from the distortion of the electoral process—such as obstruction of justice or payback to Russia. In his case, far more than Nixon’s, the issue really is the cover-up, not the crime.

Observing such legal niceties is crucial in thinking about removing a president for undermining the rule of law. Yet Ford was accurate in describing the decision to impeach as inherently political. The question of whether proceedings to remove Donald Trump begin in the House before the 2018 midterm elections does not fundamentally depend on the seriousness of the charges or the president’s offenses. It depends on whether some group of Republican members of Congress is prepared to break ranks and support the process—something that did not occur until the later stages of Watergate. If that does not happen, the question of whether impeachment moves forward will likely depend on whether Democrats regain control of the House in 2019.

2.

Allan Lichtman tells us in The Case for Impeachment that nearly alone among political pundits, he foresaw victory for Donald Trump. After he won, Trump sent a note to congratulate him on his forecast, but did not mention what Lichtman considers to be his other big prediction: that Trump would be impeached before his term was up. This was based on what Lichtman calls a “deep analysis of Trump’s past and proven behavior.” In short, it was realistic to assume that Trump would not change, that he would continue to break laws and thereby put himself at risk of impeachment.

Lichtman dismisses the crucial distinction between offenses committed before and after inauguration, citing the doubtful authority of then Senator Jeff Sessions of Alabama in the impeachment hearings against a Louisiana federal judge, G. Thomas Porteous, in 2010: “I do not believe that evidence of acts committed before confirmation should be withheld from consideration in the impeachment process.” That view allows him to focus extensively on Trump’s alleged crimes before taking office, starting with violations of the Fair Housing Act in his first job, which involved keeping black tenants out of his father’s segregated rental properties, and continuing through such by now well-known scandals as Trump’s noncharitable “foundation” and his noneducational “university.”

Yet the view that prepresidential offenses are impeachable is an outlier among both constitutional scholars and legislators. (Judges may be different from presidents, since past criminal activity could impinge on their ability to deliver justice fairly.) In the cases of Nixon and Bill Clinton, the House Judiciary Committee took care to frame articles of impeachment around acts that took place while they were in office.

Lichtman is wrong that collusion during the campaign between Trump and Russia could lead to impeachment for treason. He states flatly that Trump could even be impeached for failing to report treasonous conduct if it could be shown that he knew about collusion with Russia on the part of his aides. Treason is, of course, one of two offenses specified in the impeachment clause of the Constitution, along with bribery. But it is defined elsewhere in the Constitution as giving aid and comfort to a foreign power at war with the United States.3 Assuming that treason as an impeachable offense means the same as it does as a criminal offense, the president or any other official could be charged with it only during a state of war.

Brian Snyder/Reuters

Donald Trump with Arizona sheriff Joe Arpaio at a campaign rally in Iowa, January 2016

When he proposes articles of impeachment for Donald Trump, Lichtman overreaches further, classifying conduct as impeachable when it is not an abuse of power but an act or policy he considers bad and dangerous. He devotes a chapter to the claim that Trump’s lies, including lies before taking office, are grounds for impeachment. Another chapter argues that Trump’s “war on women,” including his alleged misogynist conduct, is impeachable.

Most strikingly, Lichtman asserts that Trump’s policy on climate change is a “crime against humanity” worthy of impeachment. There would be no faster way to discredit the idea of impeachment legally and politically than by treating wrongheaded policy as a basis for it. At the Philadelphia convention, James Madison objected to a proposal that would have made “maladministration” sufficient grounds for impeachment. The term was “so vague,” he said, that it would be “equivalent to a tenure during pleasure of the Senate.” The long-term consequences of treating policy disagreements as grounds for impeachment are terrifying to contemplate for the stability of a presidential system of government.

A far more cautious approach to the topic, one thoroughly grounded in constitutional history and past practice, may be found in Cass Sunstein’s excellent Impeachment: A Citizen’s Guide. Sunstein advocates a neutral, nonpolitical approach to impeachment, urging us to imagine ourselves behind a veil of ignorance, knowing nothing of the president’s policies but only of the actions for which he is to be impeached. In fulfillment of that goal, Sunstein says nothing directly about the current occupant of the office. The name “Donald Trump” does not appear in his book.

Sunstein does provide twenty-one hypothetical cases, offering his view of whether impeachment would be appropriate for each. Some of these clearly refer to current events, such as one in which a “president is elected as a result of a secret plan with a nation that is unfriendly to the United States…. There is no quid pro quo, but the president’s election has unquestionably been facilitated by an explicit plan.” (Answer: yes to impeachment.) In another, “a president makes a host of erratic decisions, and they lead to domestic and international turmoil.” (Answer: yes, but only just.)

These intriguing cases—some of them very hard to judge—show the complexity of the impeachment question. They point the way to the kind of careful application of law to facts that is required to make a conscientious evaluation.

3.

Are impeachment proceedings against Donald Trump warranted? Article II, Section 4 states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The essential terms and phrases here have historical meanings somewhat at variance with contemporary usage. The words “crimes” and “misdemeanors,” for example, do not distinguish acts of different gravity, as they do in criminal law, but were intended as synonyms. More important, the adjective “high” does not mean “very bad,” but rather that the crimes are committed by high government officials in the course of their duties. This was a standard English usage dating back at least to late medieval and early modern impeachments, and well understood by the Framers.

Crimes and misdemeanors are thus “high” when they relate to the president’s exercise of the distinctive duties of his office. They may be crimes in the sense that they are found in the statute books—but high crimes and misdemeanors may go beyond the US Code. High crimes and misdemeanors are presidential actions that contradict, undermine, and derogate democracy and the rule of law. They are actions that weaken the liberty and equality of individuals and the capacities of other branches of government.4 The jurisdiction of impeachment, Alexander Hamilton wrote in Federalist No. 65, covers

offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

This definition offers support for impeachment proceedings against Andrew Johnson in 1868 and Richard Nixon in 1974. Hamilton’s exegesis offers less support for the impeachment of Bill Clinton in 1998. Clinton was impeached for providing false testimony while in office to a grand jury about his sexual relationship with Monica Lewinsky and thereby obstructing justice in relation to a civil suit from Paula Jones. Conceivably it could be maintained that the affair with Lewinsky was an abuse of the presidential office, and that the false testimony was therefore an impeachable offense. But the better reading is that the charges were essentially for private conduct that did not implicitly harm “society”—which was a large part of the reason Clinton was acquitted by the Senate.

What might constitutionally grounded articles of impeachment against Donald Trump look like? The most clear-cut one would be based on public corruption, including conflicts of interest and receipt of foreign emoluments.

Believing—incorrectly—that the president “can’t have a conflict of interest,” Trump is using his office to enrich himself and members of his family. His “winter White House,” Mar-a-Lago, is a private club that he owns and that charges a $200,000 initiation fee for members to get access to him, his head-of-state guests, and his staff. Membership fees go as high as $350,000 at his Bedminster, New Jersey, golf club, where Trump spent his August vacation. One of his first acts as president was a directive reversing a 2015 decision by the Environmental Protection Agency under the Clean Water Act that would have significantly raised water costs at these and other golf courses in which he has invested more than $1 billion over the past ten years.

Trump has provided free advertising for properties he owns by visiting them on more than seventy-five days so far, approximately a third of the days he has been in office. Meanwhile, businesspeople from around the world are admitted to meetings in the Oval Office with the implicit possibility of present or future gain from dealings with his family’s businesses.

When foreign officials stay in a Trump hotel or partner with the company he still owns, they are also giving him an emolument—that is, a payment—in violation of Article I, Section 9, Clause 8 of the Constitution. The clause says that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This archaic term represents a profound concern of the founders that, as Hamilton wrote in Federalist No. 22, “one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

One of Trump’s lawyers, Sheri Dillon, has claimed an exemption from the emoluments clause for what she calls “fair value exchange.” In other words, if Trump doesn’t overcharge customers, the payment is not an emolument but simply part of a business transaction. No such exception appears in the Constitution, and the word “emolument” in the eighteenth century covered fees for services, not just gifts. But even if such an exception were to be read anachronistically into the word, evidence suggests that commercial exchanges with sitting heads of state necessarily reflect the value of political influence.

These kinds of conflicts are among the most routine and endemic forms of political corruption in many countries. In Italy, Silvio Berlusconi is estimated to have earned profits of more than a billion euros from his terms as prime minister; he did this by allowing his television network Mediaset to charge slightly more for advertising than its state-owned competitor, RAI.5 Trump is using his public office for private gain in a similar way. According to TheWall Street Journal, the Trump International Hotel in Washington, D.C., has raised its rates more than 50 percent in the months since he was elected, and now charges considerably more than comparable hotels.

In any case, Trump has already received foreign emoluments that go beyond any fair exchange, including valuable intellectual property rights from the Chinese government for his business and his daughter’s—rights he was denied before he became president. Was this foreign emolument a reward for Trump dropping his initial hints at abandoning the US government’s long-standing one-China policy? Is Trump’s friendliness toward Philippine President Rodrigo Duterte related to his license to build a $150 million Trump Tower in Manila? Is his benign view of Recep Tayyip Erdoğan’s crackdown a consequence of his deals in Turkey?

There is no way to disentangle personal and public interest in these and other instances. The president’s unprecedented refusal to insulate himself from foreign payments undermines the integrity of his foreign policy, even if self-interest plays no part in his conscious decision-making. Trump could easily have avoided this pitfall by selling business assets and putting his wealth in a blind trust for the duration of his presidency, as his predecessors have done.

A second plausible article of impeachment flows from Trump’s undermining democracy by covering up distortion of the electoral process and, potentially, rewarding a foreign state that interfered in it. Subverting the 1972 election and covering it up afterward was the core of the impeachment case against Richard Nixon. Even if collusion during the campaign is not itself treated as impeachable, post-inaugural actions taken as a result of benefits received from Russian-orchestrated leaks would count as impeachable offenses. Trump’s efforts to obstruct justice or to compensate Vladimir Putin for helping him get elected would certainly fall into this category.

Evidence for this charge is not sufficient at present. But it continues to emerge on a daily basis, much of it provided by the president’s own tweets and interviews. Trump’s acknowledgment that he fired James Comey because he would not drop the FBI’s investigation of the Russia scandal is as close to a presidential confession of obstruction of justice as we are likely to see. Trump reportedly dictated his son’s misleading, incomplete statement about his meeting with a senior Russian lawyer and several other shadowy figures with intelligence connections to receive compromising information on Hillary Clinton. Pressure on Attorney General Jeff Sessions to resign for failing to act as a kind of personal lawyer to Trump and reports of efforts to undermine Special Counsel Robert Mueller point in the same direction. Ordering the firing of Mueller might be one of the few actions that would prompt members of the Republican Party to consider impeachment.

A third impeachment article, less clear-cut than the first two, could be based on Trump’s systematic attacks on democratic process and institutions. This would include his refusal to discharge obligations of his office while attacking the constitutional separation of powers.

Constitutional disobedience was at the center of the impeachment case against Andrew Johnson. In defiance of his constitutional duty to execute the laws, Johnson was intentionally failing to enforce the laws that were supposed to guide Reconstruction—in particular the law designed to force the southern states to let African-Americans vote and to ratify the Fourteenth Amendment. The Republican-controlled Congress, aiming to protect Abraham Lincoln’s holdover secretary of war, Edwin Stanton, enacted the Tenure-of-Office Act, which required legislative permission for the president to dismiss federal officials confirmed by the Senate. Anticipating possible disobedience by Johnson, the law announced that violating it would constitute a “high crime and misdemeanor.”

The Tenure-of-Office Act, which interposed a legislative veto on the president’s Article II authority to dismiss government officials, was almost certainly an unconstitutional violation of the separation of powers. Johnson asserted as much in vetoing the bill, but Congress overrode the veto. Johnson then proceeded to fire Stanton, who locked himself in his office, claiming protection under the act. The House impeached Johnson, charging him with violating the law and, more forthrightly, with blocking ratification of the Fourteenth Amendment by failing to enforce Reconstruction. Johnson contended that he could not be impeached for failing to follow an unconstitutional law. The House impeachment managers rejoined that only the Supreme Court, not the president, could declare a valid law unconstitutional.

Johnson’s Senate acquittal, by a single vote, hinged in part on his assertion of his independent right to obey the Constitution. At the same time, the acquittal was the result of political compromise. Johnson withdrew his opposition to the Fourteenth Amendment, which was then ratified by the remaining southern states. The impeachment process therefore vindicated the principle of presidential fidelity to the law and the separation of powers—at least on one plausible reading.

Donald Trump’s pattern of challenging the independence of the judiciary was set during the campaign with his attacks on the judge handling the civil lawsuits against Trump University, whom he called “Mexican.” After Trump was sworn in, he attacked a federal judge in Seattle who ruled against his travel ban as a “so-called judge.” In April, he threatened to “break up the 9th Circuit,” because of its ruling blocking his administration’s efforts to deny federal funding to sanctuary cities.

Trump’s pardon of Arizona sheriff Joe Arpaio on August 25 was an even more concrete manifestation of this disrespect for judicial independence and the rule of law. Arpaio had been convicted of criminal contempt for willfully violating a federal court order to cease unconstitutional detention of suspected undocumented immigrants. By pardoning him, Trump not only signaled his approval of an elected public official openly flouting the Constitution. He thwarted the judiciary’s authority to say what the law is and to enforce its judgments. The pardon, though formally within Trump’s executive authority, in fact undercut the very constitutional structure that creates presidential power in the first place.

Such challenges to judicial independence cannot be dismissed as mere expressions of pique. They are an important feature of rising authoritarianism in Poland, Turkey, and elsewhere. The same is true of attacks on freedom of the press and Trump’s attempts to constrain the First Amendment. Declaring the press “the enemy of the people,” Trump has unlawfully excluded media outlets he dislikes such as CNN and The New York Times from official briefings. That violates the constitutional mandate that the government treat the press neutrally regardless of its viewpoint. Members of his administration have pressured Time Warner, CNN’s parent company, to fire journalists—another classic strategy for destruction of media freedom in places like Turkey, Russia, and Venezuela.

These are not the only possible articles of impeachment. Another is defamation—starting with a tweet in which Trump falsely accused Barack Obama of tapping his phones. Because presidents while in office are immune from civil lawsuits regarding their official acts, impeachment is the only immediate remedy for a president who makes unsupported charges of criminality against his predecessor. Trump also made defamatory attacks on James Comey in a recent New York Times interview, accusing Comey of lying to Congress under oath and of attempting to blackmail him by threatening to expose the dossier on him prepared before the election by a former MI6 officer.

Finally, there are offenses Trump has proposed committing but has not yet committed. In addition to the possibility of dismissing Mueller, he has suggested that he might preemptively pardon aides or relatives. If such pardons were issued in order to protect Trump himself, they would amount to a clear effort to obstruct justice. Unlike a self-pardon, which would be ineffectual because no judge would regard it as valid, pardons of others would almost certainly be respected by the courts. The proper remedy for abuse of the pardon power is impeachment—as Madison specifically pointed out at the Virginia ratifying convention.

It is striking how much of the evidence supporting the case for Trump’s impeachment comes from his own words: not testimony under oath or subpoena, but admissions he has volunteered. While hardly truthful by nature, Trump finds it hard to suppress a streak of candor about his own motives. Lichtman cites Nixon’s advice to Ronald Reagan, offered by letter during the Iran-contra scandal: “Don’t ever comment on the Iran–Contra matter again. Have instructions issued to all White House staffers and Administration spokesmen that they must never answer any question on or off the record about that issue in the future.” This would be equally good advice for Donald Trump, were he capable of taking it.

—August 30, 2017

Letters

Two books published in the 1970s by important constitutional law professors address these issues in detail: Charles L. Black, Impeachment: A Handbook (Yale University Press, 1974), parts of which are available online at lawfareblog.com/impeachable-offense; and Raoul Berger, Impeachment: The Constitutional Problems (Harvard University Press, 1973). Black wrote with Nixon in mind; Berger was inspired to write by the attempted impeachment of Douglas in 1970. ↩

2

The Supreme Court has never definitively held that a sitting president could not be indicted, and indeed a memorandum written for independent prosecutor Kenneth Starr argued to the contrary. (See Charlie Savage, “Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes,” The New York Times, July 22, 2017.) But most scholars agree that the presidency would be improperly hamstrung by a criminal charge, which could in theory even lead to the president being incarcerated. ↩

3

Article III, Section 3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” ↩

4

There was a highly technical debate in the 1970s between Raoul Berger and the historian Clayton Roberts over whether high crimes and misdemeanors in Stuart England had to be acts already understood as unlawful under some legal source or could be purely political acts. See Clayton Roberts, “The Law of Impeachment in Stuart England: A Reply to Raoul Berger,” The Yale Law Journal, Vol. 84, No. 7, p. 1419 (June 1975). The two agreed, however, that high crimes and misdemeanors did not have to be statutory or common-law crimes. And both acknowledged that the House of Commons frequently impeached politicians for acts not otherwise criminal. Roberts argued that such impeachments were not accepted by the House of Lords. ↩